2~ CHAPTER SEVEN THE SUPREME COURT AS A GUARDIAN The Supreme Court addressed the great issues of religious faith and practice only rarely during its first century of operation. It usually let state law and local custom prevail except where some larger constitutional value was at stake. Even in the first decades of this century, the Court was circumspect in its treatment of religious controversies. Most of the cases that directly implicated the religion clauses in these early years involved members of religious minorities, particularly Mormons and Catholics. The Court weighed the religious issues~~which often played only a minor part in the Court's final determination~-on the scales of a generalized Christian standard of personal morality and public expression without explicitly defining religion. Specific cultic practices that threatened to disturb public peace and order simply fell outside the pale of free exercise protections. This early period is covered in Chapter Seven. The justices began to negotiate more precise constitutional metes and bounds in earnest during the 1940s after the Court decided that the Fourteenth Amendment made the free exercise and establishment provisions of the First Amendment applicable to the states and localities. A rough sketch of acceptable practices and legitimate regulations began to emerge. With a few exceptions, such as the polygamy cases, the Court had until then carefully avoided taking an activist role in the area of 259 religion. But in its efforts to correct some definite abuses and constitutional problems in the local regulation of religious proselytism, the Court perhaps needlessly broadened its jurisdiction, leaving it open to a myriad of competing claims and counterclaims. Moving from the protection of what one commentator called "a sect distinguished by great religious zeal and astonishing powers of annoyance," 1 the Court then began taking up the complex financial, pedagogical, and social issues that, since 1947, have become the primary focus of its deliberations on the place of religion in the proper study of mankind. These later years are covered in Chapter Eight. Accommodation Although the religion clauses of the Constitution were not subjected to close scrutiny by the Supreme Court until late in the nineteenth century, religious issues figured in a few cases that reveal much about the Americanization of common law principles and the evolution of the constitutional tradition. While most of these cases concerned church property, wills, and unincorporated religious societies, some of them anticipated the issues of religious liberty that began to fill the Court's docket at the start of World War Two. The first cases to reach the Court early in the nineteenth century are indicative of the difficult legal transition from a tradition of church establishments to the new system of free churches. During the colonial period, only the established churches and a privileged minority of the dissenting churches were able to protect their property by means of incorporation. Ever since the Tudor period, established churches 260 operated as municipal corporations vested with the ability to acquire property and govern their affairs, raise revenues, and compel attendance at their services. All this changed when, following the War for Independence, one church establishment after another was dissolved. Suffrage was extended to dissenters in places where Catholics, Jews, Baptists, Unitarians, and Quakers had once been excluded. Mortmain statutes that limited the rights of churches disappeared. But despite these changes, much remained the same. A few states barred clergymen from holding public offices. Religious corporations were treated as creatures of the state. Title to church property had to be vested either in lay trustees or in the clergy as corporations sole, rather than in the ruling ecclesiastical body, thus reinforcing a pronounced bias in favor of congregational forms of church government. Hierarchical churches, such as the Roman Catholic Church, were consequently disadvantaged. According to Patrick J. Dignan: The American legal theory of corporations is fundamentally the same as that of English law. There can be no corporation which is not the creation of the civil law, and all tenure of property likewise required civil authority. The Church enjoys a large measure of freedom, bu~ the law does not, within the United States, deal with it as such. The early Supreme Court cases involving trusts, bequests, and police powers helped establish a pattern of accommodation, secular control, and dependency that has characterized the interaction of church and state ever since. Despite the growth of practical religious liberty, some of the habits of state intervention have continued to persist and have lately grown in various and subtle ways. In the absence of an official religious establishment, the unifying value of an 261 ideological common ground has had to be pursued by other means. Historically, these means have included political and religious pluralism, national symbols and ceremonies, nonsectarian education, a national language, and the secularization of religious traditions into a common moral code. Trusts and Bequests In Terrett v. Taylor, 9 Cranch 43 (1815), the Court upheld the vested property rights of an Episcopal church and ruled unconstitutional a Virginia statute confiscating its lands, denying that a state "can repeal statutes creating private corporations" or "by such repeal can vest the property of such corporations exclusively in the state . without the consent or default of the corporators." By upholding the right of the former established church of Virginia to retain its corporate identity and endowments, the Court claimed to stand "upon the principles of natural justice, upon the fundamental laws of every free government, upon the spirit and letter of the constitution of the United States, and upon the decisions of the most respectable judicial tribunals. " ( 9 Cranch 43, 52). Justice Story, in a unanimous opinion, discoursed on the limited powers of the state under a constitutional form of government: Had the property thus acquired been originally granted by the state or the king, there might have been some color (and it would have been but a color) for such an extraordinary pretension. But the property was, in fact and in law, generally purchased by the parishioners, or acquired by the benefactions of pious donors. The title thereto was indefeasibly vested in the churches, or rather in their legal agents. It was not in the power of the crown to seize or assume it; nor of the parliament itself to destroy the grants, unless by the exercise of a power the most arbitrary, oppressive and unjust, and endured only because it could not be resisted. It 262 was not forfeited; for the churches had committed no offence. The dissolution of the regal government no more destroyed the right to possess or enjoy this property than it did the right of any other corporation or individual to his or its own property. The dissolution of the form of government did not involve in it a dissolution of civil rights, or an abolition of the common law under which the inheritances of every man in the state were held. The state itself succeeded only to the rights of the crown; and, we may add, with many a flower of prerogative struck from its hands. It has been asserted as a principle of the common law that the division of an empire creates no forfeiture of previously vested rights of property (9 Cranch 43, 49~50). But while affirming the right of the legislature to abolish the exclusive rights and prerogatives once enjoyed by the Episcopal Church, the Court also upheld the permissibility--if not the duty--of aiding religion generally: But the free exercise of religion cannot be justly deemed to be restrained by aiding with equal attention the votaries of every sect to perform their own religious duties, or by establishing funds for the support of ministers, for public charities, for the endowment of churches, or for the sepulture of the dead. And that these purposes could be better secured and cherished by corporate powers, cannot be doubted by any person who has attended to the difficulties which surround all voluntary associations. While, therefore, the legislature might exempt the citizens from a compulsive attendance and payment of taxes in support of any particular sect, it is not perceived that either public or constitutional principles required the abolition of all religious corporations (9 Cranch 43, 49). In Town of Pawlet v. Clark, 9 Cranch 292 (1815), a town in Vermont pressed its claim to a tract of land originally set aside under a colonial grant as a glebe to support a parish church. Justice Story, who again wrote the Court's opinion, held that it was "a clear principle that the common law in force at the emigration of our ancestors is deemed the birth right of the colonies unless so far as it is inapplicable to their situation, or repugnant to their other rights and privileges" (9 Cranch 292, 333). Under English common law, the parsons of Episcopal churches that were duly erected and consecrated had a right 263 to the glebe in perpetual succession. An unappropriated glebe could be used by the crown for other purposes, but only with the consent of the town, which was still legally obliged to provide for a church. In this case, the church had never been built. The Episcopal society that later took possession of the glebe was founded only in 1802, long after independence. The Court upheld the claim of the town and declared that "a mere voluntary Society of Episcopalians within a town, unauthorized by the crown, could no more entitle themselves, on account of their religious tenets, to the glebe, than any other society worshiping therein" (9 Cranch 292, 334). The Church of England had never existed as a corporation but only as an ecclesiastical institution under the patronage of the state.